Appeal from the Circuit Court of Cook County; the Hon. William
Cousins, Jr., Judge, presiding.
JUSTICE SCARIANO DELIVERED THE OPINION OF THE COURT:
Defendant-appellant, Charles Leeks, was charged with dual counts of murder and single counts of armed violence and concealment of a homicidal death. He was tried without a jury and was ultimately adjudged guilty of the offenses of voluntary manslaughter and concealment of a homicidal death. Defendant was thereafter sentenced to concurrent terms of ten years and five years, respectively, on those convictions. He appeals the conviction and sentence on the voluntary-manslaughter conviction.
The facts are not substantially in dispute on appeal. At the time of the homicide, defendant was living with decedent, with whom he had a homosexual relationship. On the day of the offense, February 20, 1984, the defendant broached the subject of his moving out of Rosano's (the decedent's) apartment and taking one of his own. Rosano reacted angrily to this suggestion and restrained defendant when he attempted to leave Rosano's apartment. As a result, a fight between the two men ensued, moving from the living room into the bedroom. During the course of the fight, defendant grabbed an object off a nightstand and struck Rosano three or four times in the head with it. Rosano slumped to the floor, and defendant used the opportunity to flee the apartment. The blows proved to be fatal to Rosano, although in his confession defendant claimed that he was unaware of this fact when he fled.
Several hours later, defendant returned to the apartment. At that time, he found Rosano in the same position as when he had left, and he realized Rosano was dead. After remaining in the apartment for a while, defendant resolved to dispose of Rosano's body. To that end, he took the corpse to Rosano's car, put it in the trunk, and drove down to Georgia. There, he secreted the body in a wooded area. Defendant retained Rosano's car and credit cards, and he returned to the Chicago area. Defendant continued to use both the car and the credit cards until his arrest in Skokie on May 15, 1984.
After numerous stipulations, the trial court found that defendant had acted under some "provocation" when he struck Rosano, and as a result the court directed a verdict in defendant's favor on the murder charge. The court reserved judgment, however, on the included offense of voluntary manslaughter. At the same time, the court directed a verdict in defendant's favor on the armed violence count.
Defendant elected to testify on his own behalf. Defendant stated that when he raised the subject of moving out and taking his own apartment, Rosano became enraged and told defendant that he (Rosano) was "really sick of your [Leeks] whining" about moving out. Rosano became abusive and told defendant:
"there was no way [Rosano] would allow me to take an apartment of my own. He had heard this goddamn story before, he didn't want to hear it again, there should be no more of this. Something to that affect [sic], that I simply was not goint [sic] to leave the apartment."
The decedent's anger increased, and he eventually stated that "he would rather see [Leeks] dead before he would see [Leeks] out of the apartment." Rosano blocked Leeks' attempts to leave, and when the struggle moved into the bedroom, grabbed Leeks about the neck, and also bit him. Leeks then grabbed the object and struck the fatal blows. Leeks further testified that he feared Rosano intended to kill him rather than allow him to leave and that Rosano was about to do so when defendant struck him.
In rebuttal, the State recalled the officer who obtained defendant's confession, and the officer stated that defendant had not included some of the details he testified to at trial in his confession. Notably, defendant had not claimed that Rosano either screamed at him or that he became enraged or that Rosano stated that he would rather see defendant dead than allow him to move out. Defendant had also failed to mention that Rosano grabbed his neck or that Rosano hit him before defendant struck back. The court thereafter found defendant guilty of voluntary manslaughter.
At sentencing, it was noted that defendant had a prior theft charge on his record, for which he received supervision. The court pronounced sentence, and then stated:
"[T]he Court will indicate that the Court does think that the defendant has some rehabilitative potential, for that matter, although he is going to have a stop being a thief if he is going to be a useful member of society, being an educated thief."
Defendant thereafter perfected this appeal.
On appeal, defendant raises two issues. First, he asserts that the evidence was insufficient to support a conviction for voluntary manslaughter in light of the directed verdict on the murder charge and the court's findings of fact. Second, defendant contends that the trial court impermissibly considered a charge upon which defendant received only supervision in fashioning his sentence. We must reject both of defendant's contentions.
• 1 As to defendant's initial contention, defendant notes that the trial court directed a verdict in his favor on the murder charge, finding that there was sufficient provocation to mitigate the offense of murder down to the included offense of voluntary manslaughter. The defendant proceeds from this point to dispute the adequacy of the evidence of the mitigating facts and asks that this court reverse the conviction based on a purported inadequacy of that evidence. Phrased another way, defendant wants to eat his cake (have the charge ...